Tonker v. Mathews, Civ. A. No. 75-0162-A.

• Decision Date: 19 April 1976
• Docket Number: Civ. A. No. 75-0162-A.
• Citation: 412 F. Supp. 823
• Parties: Charlie TONKER, Plaintiff, v. David MATHEWS, Secretary of Health, Education and Welfare, Respondent.
• Court: U.S. District Court — Western District of Virginia

412 F. Supp. 823

Charlie TONKER, Plaintiff, v. David MATHEWS, Secretary of Health, Education and Welfare, Respondent.

Civ. A. No. 75-0162-A.

United States District Court, W. D. Virginia, Abingdon Division.

April 19, 1976.

Donald E. Earls, Cline, McAfee, Adkins & Gillenwater, Norton, Va., for plaintiff.

Donald Huffman, Asst. U. S. Atty., Roanoke, Va., for respondent.

OPINION AND JUDGMENT

TURK, Chief Judge.

Plaintiff has filed this action challenging the final decision of the Secretary of Health, Education, and Welfare denying his claim for "black lung" benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. Jurisdiction of this court is pursuant to § 413(b) of the Act, 30 U.S.C. § 923(b), which incorporates § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The issues to be decided by this court are whether the Secretary's decision is supported by "substantial evidence", and if it is not, whether plaintiff has met his burden of proof as established by and pursuant to the Act.

The plaintiff, Charlie Tonker, was born on June 17, 1903. Mr. Tonker stated that he never attended school. Mr. Tonker also related that he went to work in the Nation's coal mines when he was eleven years old. Thereafter, plaintiff worked in underground mining operations as a brakeman, motorman, and cutting machine operator for almost 49 years. Since his mine retirement in April of 1965, Mr. Tonker has not worked in any other capacity. All of the plaintiff's work in the coal mines involved exposure to significant quantities of dust. Mr. Tonker now alleges that as a result of such work, he had developed a breathing impairment of severity sufficient to entitle him to benefits under the Act. He has presented various medical reports and testimony in support of his claim.

The first medical evidence to be considered consists of a series of reports compiled while Mr. Tonker was hospitalized in the Appalachian Regional Hospital from March 18, 1967 to April 1, 1967. At that time, plaintiff was successfully treated for an acute posterior myocardial infarction. Medical notations on plaintiff's progress reports suggest an otherwise normal chest condition. An x-ray report dated March 18, 1967 revealed fibrosis, slight bronchitis, and an otherwise normal chest. Shortly after Mr. Tonker's discharge, Dr. D. B. Jones completed a second x-ray analysis which confirmed the earlier diagnosis. However, Doctors G. J. Rosenstein and Meyer Jacobson both reread Dr. Jones' film as negative for pneumoconiosis.

Dr. James Profitt read a film dated August 4, 1970 as negative for pneumoconiosis. The film was reread by Doctors B. W. Gaylor and L. Murphy. Dr. Gaylor described the film as negative while Dr. Murphy considered the film to be unreadable. Dr. S. R. Sewell completed a general medical evaluation on April 4, 1973. Dr. Sewell stated that he had been plaintiff's doctor for the period from March 26, 1968 to December 19, 1972 with observation at two month intervals. (TR 117). Dr. Sewell noted, by way of history, plaintiff's longstanding cough productive of phlegm and persistent shortness of breath. Dr. Sewell diagnosed chronic obstructive lung disease and pneumoconiosis. He further opined that plaintiff "could not do coal mine work due to shortness of breath and angina." (TR 117).

On March 19, 1973, Dr. Paul Van Lith conducted a pulmonary function study. On the basis of the results, Dr. Van Lith described Mr. Tonker's spirometry as normal. Dr. Paul Odom completed a second spirometric evaluation on June 4, 1973. Dr. Odom discovered a normal FEV, and a substantially reduced MVV. However, since 20 C.F.R. § 410.490(b)(1)(ii) requires both FEV, and MVV to fall below specified standards, Mr. Tonker is not entitled to the presumption of totally disabling pneumoconiosis as provided by that section. Dr. Odom also interpreted an x-ray film as indicative of pneumoconiosis 1/2 p. Dr. Odom's film was later reread as negative for the disease by Doctors Paul Wheeler, Frederick Stikit, and Aaron Weinstein. Nevertheless, on the basis of all his findings including those developed on physical examination, Dr. Odom found Mr. Tonker to be disabled for "arduous labor, coal mining, and work in a dusty environment."

On February 12, 1974, Dr. H. L. Bassham read a chest x-ray as indicative of opacities consistent with pneumoconiosis, 1/1 p. Dr. D. B. Jones read a film dated March 11, 1974 as suggestive of pneumoconiosis 2/2 p. and bronchitis.

In addition to the medical evidence, Mr. Tonker presented his own oral testimony in support of his claim. Plaintiff described extensive shortness of breath and coughing. He has great difficulty mowing his lawn and is unable to make garden. He also described his inability to stoop over and pick up objects.

In an opinion adopted as the final decision by the Secretary, an Administrative Law Judge found that the preponderance of the evidence did not demonstrate the presence of a totally disabling pneumoconiosis or respiratory condition which might be presumed to be pneumoconiosis. However, the court is unable to conclude that the final decision of the Secretary is supported by "substantial evidence."

Pursuant to statutory authority, the Secretary has prescribed several standards for determining whether a living miner is totally disabled due to pneumoconiosis. The applicable criteria for such a case include: 20 C.F.R. §§ 410.414, 410.416, 410.418, 410.422, 410.424, 410.426, 410.428, and 410.490.

The administrative record in this case includes numerous medical analyses which obviously conflict to some degree. Given such a circumstance, the finding that Mr. Tonker fails to qualify for a presumption of pneumoconiosis under the purely objective criteria of 20 C.F.R. § 410.490(b) is not unreasonable. However, Mr. Tonker's 49 year history of coal mining employment clearly qualifies him for consideration under 20 C.F.R. § 410.414(b). That particular administrative regulation was derived from 30 U.S.C. § 921(c)(4) which provides, inter alia, as follows:

(4) if a miner was employed for fifteen years or more in one or more underground coal mines, and if there is a chest roentgenogram submitted in connection with such miner's . . claim under this subchapter and it is interpreted as negative with respect to the requirements of paragraph (3) of this subsection, and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis . . .. In the case of a living miner, a wife's affidavit may not be used by itself to establish the presumption. . . . The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.

The court has concluded that the Secretary failed to adequately evaluate plaintiff's claim in light of such a "fifteen year presumption."

In 1972, Congress amended the Federal Coal Mine Health and Safety Act of 1969. The "fifteen year presumption" of 30 U.S.C. § 921(c)(4) was only one of several innovations designed by Congress in 1972 to streamline the adjudicatory process prevalent under the original Act. The Congressional history describing the purpose of the 19...